Judgment of the ECHR of 10 July 2020 in the case "Mugemangango (Mugemangango) v. Belgium" (aplication No. 310/15).
In 2015, the applicant was assisted in the preparation of the aplication. The aplication was subsequently communicated to Belgium.
The case successfully dealt with the applicant's aplication against the election results, in which he requested a review of ballots that were declared blank, corrupted or disputed, and a recount by a body that did not provide sufficient guarantees of impartiality. The case violated the requirements of article 1 of Protocol No. 3 to the Convention for the Protection of Human Rights and Fundamental Freedoms, article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, considered in conjunction with article 3 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
Under Belgian law, the legislative authorities (parliaments) themselves have the right to examine complaints of electoral irregularities, thus excluding the jurisdiction of an external court or other body. Participating in the Walloon parliamentary elections in Belgium in 2014, the applicant lost the election by only 14 votes short of the required number. Without demanding that the election be declared invalid and a new election be held, the applicant requested a review of the ballots that were declared blank, corrupted or disputed (more than 20,000 ballots) and a recount of the votes cast in the applicant's electoral district (province). Although the Credentials Committee of the Walloon Parliament (hereinafter referred to as the Credentials Committee) found the applicant's complaint justified and proposed a recount, the Walloon Parliament, which was not yet formed at the time, decided not to follow this decision and approved the credentials of all the elected candidates. The applicant appealed against the procedure for examining his complaint.
Regarding compliance with Article 3 of Protocol No. 1 to the Convention. If irregularities in the counting of votes or in the processing of electoral documents could have an impact on the election result, the existence of a fair recount procedure is an important guarantee of the fairness and success of the entire election process. The concept of free elections is only jeopardized if there is evidence of procedural violations that could violate people's right to freedom of expression, and if complaints of such violations are not effectively dealt with by the authorities of the State concerned. In this regard, the Court had to first verify whether the applicant's complaints were sufficiently serious and could be proved, and, secondly, whether the complaints were effectively dealt with.
(a) Whether the applicant's complaints were sufficiently serious and could be proved. The Credentials Committee of the Walloon Parliament found that in several of the scenarios considered, the distribution of parliamentary seats by the applicant's constituency would have changed if the blank, corrupted or disputed ballots were eventually counted as valid. This change would probably affect the distribution of seats from other districts in the province. This was confirmed at a meeting of the Walloon Parliament. In any case, it cannot be excluded that after the recount required by the applicant, he would have been declared elected to the Walloon Parliament. It is therefore impossible to say that the alleged violations did not call into question the credibility of the election results.
The applicant submitted a serious and provable complaint that could have led to a change in the distribution of seats in the Walloon Parliament. However, this does not necessarily mean that the Walloon Parliament should have granted the applicant's request for a recount.
Although the recount of votes is an important guarantee in relation to the fairness of the election process, it was not the task of the European Court of Justice to determine exactly what actions the authorities should have taken. The Court's task was to verify that the applicant's right to participate in the elections was effective. This implied that the applicant's arguments, which were sufficiently serious and subject to proof, should have been effectively considered in accordance with the requirements set out below.
(b) Whether the examination of the applicant's arguments was effective. In order for complaints concerning electoral rights to be dealt with effectively, the decision-making process on complaints about election results must be accompanied by appropriate and sufficient safeguards to ensure, inter alia, that any arbitrariness is excluded. These guarantees are intended to ensure that the rule of law is respected in the handling of election-related disputes and, accordingly, the integrity of the electoral process, so that the legitimacy of the Parliament's status is guaranteed and it can thus act without fear of criticism of its composition. It was about maintaining the confidence of the voters in the work of the parliament. In this respect, these guarantees ensured the proper functioning of an effective political democracy and represented a preliminary step towards parliamentary autonomy.
Indeed, the rules concerning the internal workings of the Parliament, including the composition of its organs, as an aspect of parliamentary autonomy, in principle fall within the scope of the Contracting States ' discretion. Nevertheless, the discretion granted to the authorities must be consistent with the concept of "effective political democracy" and the principle of "rule of law", as referred to in the Preamble to the Convention. Consequently, parliamentary autonomy can only really be exercised in accordance with the principle of the rule of law.
The applicant's case concerned a post-election dispute over the election results, i.e. the legality and legitimacy of the composition of the newly elected Parliament. In this respect, the present case differs from disputes that may arise after the lawful election of a member of Parliament, that is, disputes concerning a full member of Parliament at the time of approval of the composition of the legislative body in accordance with the procedure provided for by the legal system of the State. At the time when the credentials committee and the plenary of the Walloon Parliament issued their decision on the applicant's complaint, both of these organizations were composed of members of Parliament who had won their seats as a result of the election, whose validity was disputed by the applicant.
In addition, when the Walloon Parliament decided to reject the complaint, the powers of its members had not yet been approved and they had not taken the oath. Thus, the parliament had yet to be formed. This factor should have been taken into account when the European Court of Justice determined the significance of parliamentary autonomy, considering the observance of the rights guaranteed by Article 3 of Protocol No. 1 to the Convention.
The Court has focused its consideration on the following aspects.
(i) Guarantees of the impartiality of the decision-making body. Article 3 of Protocol No. 1 to the Convention aims to strengthen the confidence of the inhabitants of the State in Parliament by guaranteeing its democratic legitimacy, and as such certain requirements also follow from this article with regard to the impartiality of the body dealing with electoral disputes and the importance that external manifestations may have had in this regard.
In the context of the right to free elections provided for in article 3 of Protocol No. 1 to the Convention, the required guarantees of impartiality are necessary to ensure that decisions are made solely on factual and legal grounds, and not on political grounds. Consideration of complaints about the election results should not be a platform for political struggle between different parties. In this regard, members of Parliament cannot be "politically neutral"by definition. Consequently, in the system that existed in Belgium, where the Parliament was the sole judge of disputes over the election of its members, special attention should have been paid to the guarantees of impartiality established by Belgian law regarding the procedure for dealing with complaints about election results.
Taking into account the standards developed and recommended by European and international bodies, the question arises: did the system established by Belgian law, as applied in the applicant's case, provide sufficient guarantees of impartiality?
The applicant's complaint was first examined by the credentials committee. It consisted of seven members, chosen by lot from among the persons elected to the Walloon Parliament. The Credentials Committee was composed exclusively of members of the Walloon Parliament and was not required by law to represent the various political groups in Parliament. Two members of the Walloon Parliament who sat on the credentials committee were elected from the same constituency as the applicant. At the time under review, there was no provision in the Statute of the Walloon Parliament or in any other regulation to exclude the relevant members of Parliament from taking part in the examination of the complaint, and in the applicant's case they voluntarily refused to take part in the decision on the applicant's complaint. Nevertheless, it appeared from the opinion of the Credentials Committee that the said members of the Walloon Parliament had nevertheless been present at the hearing of the applicant's complaint and had voted to refer the final opinion, which included the committee's views on the merits, to the plenary session of the Walloon Parliament. In any case, the opinion of the credentials committee was then referred to the plenary of the Walloon Parliament, which did not agree with the conclusions of this committee.
Members of the Walloon Parliament (and at the same time members of the credentials committee) who were direct opponents of the applicant also participated in the voting and in the plenary session of the Walloon Parliament. Consequently, the decision was taken by a body that included members of the Walloon Parliament, whose very election would have been called into question if the applicant's complaint had been found to be justified, and whose interests directly contradicted those of the applicant. The decision on the applicant's complaint was taken by a simple majority vote. The rules of such voting allowed the presumed majority of participants to state their point of view on the problem, even if the votes were almost equally divided (that is, the minority was significant). Thus, contrary to the recommendations of the Venice Commission, the rule of voting by a simple majority was applied unchanged, taking into account the specifics of the present case, and failed to protect the applicant, a candidate of a political party not represented in the Walloon Parliament before the elections of 25 May 2014, from a biased decision.
Consequently, the applicant's complaint was examined by a body that did not provide sufficient guarantees of impartiality.
(ii) The discretion granted to the decision-making body. The discretion granted to the decision-making body on election-related matters may not be excessive, but should be limited, with sufficient clarity, by the provisions of domestic law. The applicable law must be clearly defined and precise.
In the applicant's case, these requirements were not met. Belgian law did not provide for a complaint procedure such as that submitted by the applicant during the relevant period, and gave the Walloon Parliament exclusive authority to consider the validity of the electoral process and any doubts about the powers of members of Parliament. The criteria that the Walloon Parliament could use in resolving such complaints were not set out clearly enough in the applicable Belgian law. In addition, Belgian law did not specify the consequences of granting a complaint similar to the applicant's: in this particular case, it did not specify the circumstances in which the votes should have been recounted or the election declared invalid.
(iii) Guarantees of a fair, objective and reasoned decision. The procedure in the field of disputes on election-related issues should guarantee fair, objective and sufficiently justified decisions. In particular, complainants should be able to present their views and any arguments they consider relevant to the protection of their interests in writing or, if appropriate, at an oral hearing. In this way, the right of complainants to an adversarial process is respected. In addition, it should be clear from the public disclosure of the reasons for a decision by the competent authority that the applicants ' arguments have been properly considered and answered accordingly.
In the applicant's case, neither the Belgian Constitution, Belgian law, nor the Statute of the Walloon Parliament in force during the relevant period contained an obligation to provide the above-mentioned guarantees in the course of the credentials procedure. However, in practice, the applicant was provided with some procedural guarantees when his complaint was considered by the credentials committee. Both the applicant and his lawyer spoke at a public hearing, and the credentials committee gave reasons for its decisions. The decision of the Walloon Parliament also stated its grounds, and the applicant was notified of them.
Nevertheless, the procedural guarantees provided to the applicant were not sufficient. In the absence of the procedure provided for in the applicable legal instruments, these guarantees were the result of ad hoc discretionary decisions of the credentials committee and decisions of the plenary of the Walloon Parliament. Indeed, the Walloon Parliament made a reasoned decision. However, he did not explain why he had decided not to follow the findings of the credentials committee, even though the credentials committee had considered, on the same grounds as the Walloon Parliament had given in its decision, that the applicant's complaint was admissible on the merits and well-founded, and that the ballots from the applicant's constituency should have been counted.
Consequently, the applicant's complaint was examined by a body that did not provide the required guarantees of its impartiality and whose discretion was not sufficiently clearly defined in Belgian law. The procedural guarantees provided to the applicant during the proceedings were also not sufficient, as they were provided on a discretionary basis. The applicant's complaints were not considered under a procedure that provides for adequate and sufficient guarantees of protection against arbitrariness and ensures effective consideration in accordance with the requirements of article 3 of Protocol No. 1 to the Convention.
The case involved a violation of the requirements of Article 1 of Protocol No. 3 to the Convention (adopted unanimously).
Regarding compliance with Article 13 of the Convention, considered in conjunction with Article 3 of Protocol No. 1 to the Convention. Under the Belgian system, there was no other remedy, in a court or other public authority, for a decision of the Walloon Parliament. In fact, Belgian law gave the Walloon Parliament the exclusive power to decide on the validity of elections for members of the Walloon Parliament. In accordance with the existing rules, the Belgian courts did not have jurisdiction to consider post-election disputes.
In considering the complaint of a violation of Article 3 of Protocol No. 1 to the Convention, the Court concluded that the complaints procedure before the Walloon Parliament did not provide adequate and sufficient guarantees to ensure the effective consideration of the applicant's complaints. Consequently, in the absence of such guarantees, the remedy could also not be considered "effective" within the meaning of article 13 of the Convention.
The "public authority" referred to in article 13 of the Convention does not necessarily have to be a court in the strict sense of the word. Taking into account the principle of subsidiarity and the diversity of electoral systems in Europe, the European Court is not deciding what kind of remedy should have been provided to meet the requirements of the Convention. This issue, which is closely related to the principle of separation of powers, falls within the scope of the discretion of the Contracting States in the organization of their electoral systems. A judicial or judicial type of remedy, either at first instance or after a decision of an extra-judicial authority, should in principle be such as to comply with the requirements of article 3 of Protocol No. 1 to the Convention.
The case involved a violation of the requirements of article 13 of the Convention, considered in conjunction with article 3 of Protocol No. 1 to the Convention (adopted unanimously).
In the application of article 41 of the Convention. The Court awarded the applicant EUR 2,000 in respect of non-pecuniary damage, but the claim for pecuniary damage was rejected.